Law profs: NFL kneelers can be canned, but shouldn’t be

Constitutional scholars say that while the First Amendment doesn't technically protect football players from being fired for taking a knee during the National Anthem, the NFL should still respect the underlying principle of free speech.

Harvard University Law School Professor Laurence Tribe, meanwhile, says the only First Amendment concern stems from President Trump's tweet urging teams to fire players who do not stand for the anthem.

Several Constitutional law professors have weighed in on the endless debates surrounding the propriety of protesting during the national anthem, most of whom called it a “complicated” issue.

The issue, sparked by former San Francisco 49ers quarterback Colin Kaepernick, who famously kneeled during the national anthem throughout the entirety of the previous NFL season, intensified after President Trump called players like Kaepernick “sons of b*tches.”

"The most important protests of the 1960s civil rights movement were not protected by the First Amendment."

As a result, teams across the league took a joint-knee on Sunday in protest of Trump’s remarks, prompting fierce backlash from angry fans and extensive commentary from television pundits.

Some call it disrespectful to America’s flag and those who fought to defend it, while others claim that the flag itself affords players the freedom to protest, but most of the experts who spoke with Campus Reform said it’s a little bit of both.

University of St. Thomas Law School professor Teresa Collett drew attention for her recent comments in Intellectual Takeout, where she pleaded with readers to “please stop saying football players have First Amendment rights to disregard the direction of their private employers while engaged in privately sponsored activities.”

“They have no more Constitutional protection for their expressive activities than I do for mine at my private Catholic university. Any ‘rights’ they have are based on their contracts and employment law,” she added, responding to a claim from future Hall-of-Famer Tom Brady, who called the protests “part of our democracy.”

But the overwhelming consensus among law professors appears to be that the two statements “are not in tension,” with Harvard University Law School Professor Michael Klarman explaining that while Collett was “making a point about the reach of the First Amendment,” Brady was defending the “customs/practices/mores” of the country.

“Our country is founded on a principle of the right to protest and speak freely. The most important protests of the 1960s civil rights movement were not protected by the First Amendment,” Klarman told Campus Reform, noting that “nobody today would doubt” that such protests were “morally right.”

Vanderbilt University Law School Professor Suzanna Sherry is in agreement with Klarman, telling Campus Reform that “both Brady and Collett are correct” because “they are talking about different things.”

Since the First Amendment “prohibits only the government from censoring peaceful protest or punishing people for it,” she continued, NFL owners can therefore “fire the athletes for the protests without violating the First Amendment.”

However, Sherry thinks such a move would be both “morally wrong” and “a violation of democratic principles,” even “if it wouldn’t be illegal,” saying, “Peaceful, respectful protests is part of our democracy, and should be respected by all of us even if the Constitution doesn’t require it.”

Similarly, University of California, Los Angeles Law School Professor Eugene Volokh agreed that “they certainly don’t have a First Amendment right to protest, because the First Amendment only binds the government,” though he doesn’t “think Brady was making a First Amendment argument.”

Rather, Brady “was making an argument about fairness and compatibility with American values of free speech, which may extend far beyond any specifically legal protection for such speech,” Volokh told Campus Reform, saying his main takeaway from the debate is that “we can condemn private employer actions on free speech grounds even if we can’t condemn them on Free Speech Clause (i.e., purely legal) grounds.”

“What makes this case complicated is that this isn’t just employees using their employment as a means to make a political statement to the public. Rather, the employees are already required to make a political statement, by standing for the national anthem; by not standing, they’re trying to decline to make such a statement,” he elaborated, asking Campus Reform to consider “whether employees should be free not to participate in employer-organized political expression on the job, even if they generally aren’t free to engage in their own expression on the job.”

Additionally, New York University Law School Professor Bret Neuborne pointed out that even if player contracts don’t “protect free speech,” an owner “would be faced with concerted action by his entire team if he tried to discipline individuals.”

Standing in agreement with his peers, Neuborne told Campus Reform that “the most important thing” to consider is that “most private employers, like private colleges and the vast bulk of private employers, choose to follow First Amendment guidelines voluntarily, not because they must, but because they understand that [Brady] is right about the central role of free speech to our national identity.”

Sandy Levinson, professor at the University of Texas Law School, approached the issue differently, agreeing that although Collett is correct “in terms of pure Constitutional analysis,” she “is missing the point that for good reason we are often hesitant to support the kind of display of raw power by private employers that she seems to be supporting.”

Additionally, Levinson pointed out that “NFL games are, for better or worse, profoundly public events,” adding that “if football games really were like ordinary private business, where the day doesn’t start with employees singing the Star-Spangled Banner, then one might be more sympathetic to her overall point.”

While most professors surveyed by Campus Reform agreed that both Collett and Brady made legitimate claims, only one—esteemed Harvard University Law School Professor Laurence Tribe—came down strongly on the side of Brady.

“In recent days, I have been explaining on Twitter and elsewhere why I believe players have a strong First Amendment claim under the landmark Supreme Court precedent of West Virginia Bd of Education v Barnette (1943), which held that no government official—a category that certainly includes the president—may pressure people to salute the American flag or follow any government-specified way of expressing their views about the pledge of allegiance or the national anthem,” Tribe told Campus Reform, arguing that “football players cannot be required to leave their free speech rights in the locker room.

“And it's irrelevant that the NFL and the team owners are private entities not themselves subject to the First Amendment,” he concluded. “It's the President of the United States who violates the First Amendment when he urges the NFL and the teams in the NFL to fire players who kneel as a sign of protest during the national anthem.”

Anthony Gockowski is the Contributing Editor and an Investigative Reporter for Campus Reform. He previously worked for The Daily Caller, Intercollegiate Review, The Catholic Spirit, and The College Fix. In 2015, he was named a fellow for the Student Free Press Association. His reporting is regularly featured on Drudge Report, Fox News, National Review, and more.

CampusReform.org is a project of the Leadership Institute. The Leadership Institute is a non-partisan educational organization approved by the Internal Revenue Service as a public foundation operating under Section 501(c)(3) of the Internal Revenue code. The Leadership Institute does not endorse, support, or oppose candidates or proposed legislation. The Institute has an open admissions policy; all programs are open to the public. Contributions to the Leadership Institute by individuals, corporations, and foundations are tax deductible.
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